By T. Wadikonyana
When we think of wills, we often imagine legal documents tucked away in drawers, outlining who gets what after our demise. However, beyond the legalities lie tales of love, foresight and profound estate management planning for the future. The write up below uncovers the fascinating and sometimes unexpected narratives woven into the fabric of wills and legacies.
What is a will?
The administration of wills in Botswana is governed by the Will’s Act [CAP 31:04]. Section 2 of the Act defines a will as including a codicil or any other testamentary writing. Christopher Lehane in his book “Succession Law” defines a will as a legal document in which an individual outlines their wishes for the administration and distribution of their estate after death, as well as who they wish to oversee this process.
Who can make a will?
It is a common misconception that only older individuals or those with extensive assets need to consider drafting a will. Similarly, some believe that estate planning is irrelevant if they do not have significant wealth. However, according to section 5 of the Wills Act, anyone aged 16 or older, with sound mental capacity, can legally create a will.
Definition of important terms
- Codicil: a supplement to a will that either amends or revokes a will in whole or in part.
- Executor: an individual appointed by either the testator or court to administer the last will and testament of a deceased person.
- Testamentary succession: succession determined in accordance with the provisions of a valid will and the applicable rules of law.
- Bequest: an act of giving personal property to beneficiaries through a will.
Importance of making a will
Creating a will is crucial for several reasons;
- Firstly, it allows you to dictate how your assets and belongings will be distributed after your death. This ensures that your wishes are legally recognised and followed. Additionally. This can help prevent potential disputes among family members for your assets.
- Secondly, a will allows you to appoint an executor who will be responsible for managing your estate and oversee the distribution of your assets.
- Lastly, making a will provides peace of mind, knowing that you have taken steps to protect your family’s future and that you have planned responsibly for unforeseen circumstances.
The hidden gems of estate planning
Beyond the legalities lies a realm of lesser known yet vital provisions that can profoundly impact how your legacy is managed and preserved. These provisions are not only designed to allocate assets but also shield beneficiaries from potential challenges, such as inheritance disputes and financial mismanagement. By incorporating strategic clauses into your will- such as modus, conditions, suspensive time clauses, you can ensure that your beneficiaries are safeguarded from external pressures and their own vulnerabilities. We take a closer look at these often-overlooked provisions/clauses that play a crucial role in securing the future you envision for your loved ones.
EXAMPLES OF THE VARIOUS PROVISIONS
- Conditional provisions
A bequest is made subject to the occurrence of an uncertain future event. Conditions can be categorised in various ways;
- Suspensive conditions: The beneficiary does not receive the bequest until the condition has been complied with or fulfilled.
Examples:
- “I hereby bequeath my Volkswagen, registered B 246 AYA, to my son X provided obtains a valid driver’s license within 4 years of being eligible to do so, failing which the vehicle shall devolve to my daughter Y.”
- “I bequeath all rights and interests in my shares held at BTC to my daughter Y on the condition that she completes a diploma/degree qualification in record time, failing which the shares should be divided equally between my two sons X and Q.”
Resolutive conditions: The bequest to the beneficiary terminates upon the occurrence of an uncertain future event.
Examples:
- “I bequeath all my rights and interests in my residential Plot 16401, Palapye together with any developments thereon to my wife X, in the event that she remarries, the residential plot is to devolve to my daughter Y.”
- “I bequeath all rights and interests in Farm TQ95 to my daughter X, should she get married in community of property, the farm should be sold, and the proceeds therefrom divided equally between my four children Y, X, Q and T.”
- Dies
A bequest is made subject to a future event that will certainly occur.
Examples:
- “I leave my Toyota Corolla registered B 425 AYA to my son Y, but he should only take possession of the vehicle after attaining the age of 21.”
- “I direct that upon my death, P100 000.00 invested for a period of 10 years, at the expiry of which the proceeds should be divided amongst my grandchildren alive at that time.”
- Modus
The bequest is accompanied by obligations/ subject to certain obligations which must be performed by the legatee in order.
Examples:
- “I bequeath the amount of P75 000.00 to my nephew X, provided he cares for my beloved dog “Chase” for the remainder of Chase’s life.”
- “I bequeath my farm in Marulamabedi together with the developments thereon to my son X, and he has to pay his sister Y the sum of P88 000.00.”
- Fideicommissary substitution
The bequest transfers from one beneficiary to after a certain time lapse or fulfilment of certain conditions.
Examples:
- “I bequeath all my rights and interests in my residential Plot 11628, Block 8, Francistown, together with developments thereon to my wife V, upon her death the residential plot should devolve to my son Y.”
- “I bequeath all my rights and interests in my residential Plot 20204, Mochudi, together with any developments thereon, to Y for her lifetime. Upon Y’s death, if she is survived by children the commercial plot shall devolve to her children in equal SHARES. If Y has no surviving children, the house shall pass to my nephew Z.’’
In conclusion, wills and legacies should hold untold stories of foresight and love that transcend generations. They are not just legal mandates but personal narratives that reflect our deepest wishes for our loved one’s future. By including specific provisions, such as delaying inheritance until beneficiaries reach a certain age or protecting assets in the event of significant life changes, we can ensure that our intentions are honoured, and our children are provided for in a responsible manner. These thoughtful details within wills illuminate the importance of planning and the profound impact it has on preserving family legacies and securing the well-being of those we cherish.
